Immigration Enforcement and Detainers: An Evolving Policy

Just a few days ago, December 21, 2012, U.S. Immigration and Customs Enforcement (ICE) Director, John Morton, released data for the agency’s removals (deportations) in fiscal year 2012. The numbers were substantial with a total of 409, 849 individuals removed by the Office of Enforcement and Removal Operations; 55 percent (225,390) had been convicted of felonies or misdemeanors for such offenses as homicide (1,215), sexual offenses (5,557), drug-related crimes (40,448), and driving under the influence (36,166) among others.

At the same time, Director Morton announced to the surprise of many a change in ICE’s detainer policy. While noting that the Department of Homeland Security (DHS) Secretary Janet Napolitano has been emphatic about the agency prioritizing and focusing its resources in all spheres of enforcement, he declared that ICE had developed a new national detainer policy. (A detainer is a mechanism for ICE to identify and retain those foreign nationals who are subject to removal or removal proceedings. It is issued to federal, state, local, and tribal law enforcement agencies currently holding such individuals and serves to inform them that the agency seeks their custody upon release).

According to Director Morton, “smart and effective immigration enforcement relies on setting priorities for removal and executing on those priorities.” To that end, ICE has changed its policy on those against whom it issues detainers. The agency will now only issue detainers in federal, state, local, and tribal criminal justice systems against individuals it believes are subject to removal from the United States with the occurrence of one or more of the following conditions:

• The individual has a prior felony conviction or has been charged with a felony offense;

• The individual has three or more prior misdemeanor convictions (three or more convictions for minor traffic misdemeanors or other relative minor misdemeanors should not alone lead to issuance of a detainer unless the convictions indicate a “clear and continuing danger to others or disregard for the law”);

• The individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves: violence, threats, or assault; sexual abuse or exploitation; driving under the influence of alcohol or a controlled substance; unlawful flight from the scene of an accident; unlawful possession or use of a firearm or other deadly weapon; the distribution or trafficking of a controlled substance; or other significant threat to public safety (that is, “poses a significant risk of harm or injury to a person or property”);

• The individual has been convicted of illegal entry into the United States;

• The individual has illegally re-entered the United States after a previous removal or return;

• The individual has an outstanding order of removal;

• The individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or

• The individual otherwise poses a significant risk to national security, border security, or public safety (that is, “a suspected terrorist, a known gang member, or the subject of an outstanding felony arrest warrant or the detainer is issued in furtherance of an ongoing felony criminal or national security investigation”).

This new development in ICE’s detainer policy also contemplates and encourages the exercise of prosecutorial discretion in issuing a detainer even in those cases that may meet the aforementioned criteria. As Director Morton has noted, this policy “does not require a detainer in each case, and all ICE officers, agents, and attorneys should continue to evaluate the merits of each case” based on guidance offered by the agency’s June 2011 memorandum devoted to the exercise of prosecutorial discretion. In other words, these officials have the authority to review the specifics of each case and make a determination if a detainer is called for.

Director Morton announced at the same time that ICE will not renew any existing agreements with state and local law enforcement agencies currently operating under the 287(g) program and will instead rely on Secure Communities and other enforcement programs to facilitate a more efficient use of its resources in this realm. (The 287(g) program is one essentially deputizing state and local law enforcement officials to carry out immigration enforcement within their jurisdictions).

ICE is to be commended for these developments. It appears to reflect an effort to craft a system employing explicit and specific guidelines for appropriate times to issue detainers yet allow for discretion to actually issue one or not. The potential for racial profiling in this realm of immigration enforcement has been one raised by critics for some time. These recent actions by ICE seem to acknowledge and recognize this. Let’s hope that such is the case and that this refined approach may lessen the prospect of such.

R. Mark Frey is a St. Paul, Minnesota attorney who has been practicing immigration law exclusively for almost 25 years with an emphasis on political asylum, family immigration, naturalization, and removal defense.